1. The Circuit Court of Appeals, its rules so providing, may
notice a plain error, though not assigned. P.
287 U. S.
480.
2. Where the bill of exceptions recited that a motion for a new
trial had been made and overruled but omitted to state the ground
of the motion,
held that the omission was not fatal to
review, the ground being otherwise manifested in the record.
Id.
3. The rule that this Court will not review the action of a
federal trial court in granting or denying a motion for a new trial
for error of fact applies also to the Circuit Court of Appeals. P.
287 U. S.
481.
4. Where the evidence in an action on a contract is such that
the plaintiff, if entitled to recover anything, is entitled to
substantial damages, but there are issues properly before the jury
going to the liability of the defendant, a verdict for the
plaintiff limited to nominal damages and costs does not reveal on
its face inconsistency with the duty of the jury to assess damages,
and where in such case the trial court, without assigning reasons,
refuses a new trial, its act cannot be held erroneous as a matter
of law. P.
287 U. S.
483.
Page 287 U. S. 475
5. An exception to instructions, taken after the jury retired,
is too late. P. 486.
59 F.2d 539 reversed.
District Court affirmed.
Certiorari to review the reversal of a judgment in an action for
breach of contract.
See also 19 F.2d 273; 33
id.
420.
Page 287 U. S. 477
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Cub Fork Coal Company and Paragon Colliery Company brought this
action in the federal court for southern Indiana to recover from
Fairmount Glass Works $32,417, with interest, as damages for breach
of a contract to purchase 17,500 tons of coal at $6.50 per ton
f.o.b. mines, deliverable in twelve monthly installments beginning
June, 1920. Jurisdiction of the federal court was invoked on the
ground of diversity of citizenship. The Glass Works pleaded in bar
several defenses, and it also set up a counterclaim in the sum of
$2,000 as damages for failure to make delivery as provided by the
contract. Three trials before a jury were had. At each of the first
two, the verdict was for the defendant, and each time the judgment
entered thereon was reversed by the Circuit Court of Appeals with a
general direction for a new trial, 19 F.2d 273; 33 F.2d 420. On the
third trial, the plaintiffs recovered a verdict for $1, and, after
further proceedings, judgment was entered thereon, with costs.
The plaintiffs appealed to the Circuit Court of Appeals "for the
reasons set forth in the assignment of errors."
Page 287 U. S. 478
The errors assigned were the failure to give eleven requested
instructions. Nine instructions sought related solely to the
question of liability. None of the instructions requested and
refused related to the measure of damages. But the first asked for
a directed verdict for $42,773.50, and the second asked that, if a
verdict were rendered for the plaintiffs, the damages be set at
$42,773.50. The charge given was not otherwise excepted to. It had
appeared at the trial that, after receiving in installments about
6,330 tons of coal, the defendant refused, on December 4, 1920, to
accept further deliveries, and that there was a continuing serious
decline in the market price of coal from that date to the end of
the twelve months fixed by the contract for delivery. The defendant
had insisted upon the several defenses pleaded in bar, as well as
upon the counterclaim. After the verdict, the defendant was allowed
to amend the counterclaim so as to allege that the market price of
coal was $11 a ton at the time plaintiffs failed to make the
deliveries therein referred to, and that the defendant's damages
from such failure were $10,000. The record recites that a motion
for a new trial was made by the plaintiffs and overruled, and that
the overruling was excepted to, but the grounds of the motion, and
of the refusal to grant it, are not stated. The errors assigned do
not include any reference to the motion for a new trial; or to the
exception which was taken to the allowance of the amendment of the
counterclaim after verdict.
The Circuit Court of Appeals deemed it unnecessary to consider
the nine instructions relating to liability, since the verdict for
the plaintiffs "upon the issues which determined liability was
amply sustained by the evidence." Nor did it discuss the two
instructions which alone referred to the amount of damages
recoverable. But it made an order substantially as follows: if,
within thirty days, the parties shall stipulate that the judgment
be
Page 287 U. S. 479
modified by substituting for $1 the sum of $18,500 (or other
agreed sum), with interest at the rate of 5 percent from December
4, 1920, and costs, the judgment as so modified shall be affirmed;
otherwise the judgment shall be reversed and a new trial be had
"limited only to an ascertainment . . . of appellants'
[plaintiffs'] recoverable damages and the amount of appellee's
counterclaim if upon a new trial it appears that appellee is
entitled to any recovery or set-off on its counterclaim."
59 F.2d 539, 540. As the parties did not stipulate for the
modification suggested by the Court of Appeals, it ordered that the
judgment be reversed with costs, and that the cause be remanded to
the District Court with direction to grant a new trial limited as
stated. The defendant petitioned this Court for a writ of
certiorari on the ground that the Circuit Court of Appeals, in
violation of the Seventh Amendment of the Federal Constitution,
reexamined the verdict of the jury otherwise than according to the
rules of the common law, and reversed the judgment solely for
alleged error of fact in the verdict and for the alleged error of
the trial court in overruling a motion for a new trial. Certiorari
was granted.
The reasons assigned by the Circuit Court of Appeals for its
action were substantially these: it appears that a large sum is
recoverable as damages; that the minimum recoverable may be
determined with substantial accuracy by computation, for the
defendant "breached its contract without justification on December
4, 1920," and
"the market price of coal is shown for each day of the month,
and the average price per month is also disclosed, so that the
actual amount of damages is quite definitely ascertainable"
despite "a slight discrepancy in the statements of witnesses."
The amount shipped and the amount received are also quite
definitely ascertainable, despite a discrepancy "due apparently to
the fact that the railroads confiscated a small amount of the coal
on several occasions."
Page 287 U. S. 480
Computing plaintiffs' damages "upon the basis most favorable to"
the defendant, and the defendant's damages on the counterclaim also
on the basis most favorable to it, plaintiffs appear clearly to be
entitled to $18,250, with interest at the rate of 5 percent from
December 4, 1920, and costs. As the jury fixed the damages at $1,
the verdict should have been set aside and a new trial granted.
Since, in view of
Slocum v. New York Life Insurance Co.,
228 U. S. 364, the
court is "not at liberty to direct judgment for such amount as we
believe would fairly represent" plaintiffs' damages, the parties
should be given the opportunity of disposing of the case without
further litigation by entering into an agreement as to the damages.
If the parties do not so agree, a new trial should be granted,
limited to the ascertainment of damages, as in
Gasoline
Products Co. v. Champlin, 283 U. S. 494.
If the refusal to grant the motion for a new trial was deemed by
the Circuit Court of Appeals plain reversible error, it was at
liberty under its rules to notice the error although not assigned,
[
Footnote 1] and the omission
from the record of the grounds of the motion would be no obstacle
to a review, since the motion was obviously directed to the failure
to award substantial damages. [
Footnote 2] But we are of
Page 287 U. S. 481
opinion that the action of the District Court was not reversible
error.
First. The rule that this Court will not review the
action of a federal trial court in granting or denying a motion for
a new trial for error of fact has been settled by a long and
unbroken line of decisions; [
Footnote 3] and has been frequently applied where the
ground of the motion was that the damages awarded by the jury were
excessive or were inadequate. [
Footnote 4] The rule precludes likewise a review of such
action by a Circuit Court of Appeals. [
Footnote 5] Its early formulation by this Court was
influenced by the mandate of the Judiciary Act of 1789, which
provided in § 22 that there should be "no reversal in either
[circuit or Supreme] court on such writ of error . . . for any
error in fact." [
Footnote
6]
Page 287 U. S. 482
Sometimes the rule has been rested on that part of the Seventh
Amendment which provides that "no fact tried by a jury shall be
otherwise reexamined in any court of the United States than
according to the rules of the common law." [
Footnote 7] More frequently, the reason given for the
denial of review is that the granting or refusing of a motion for a
new trial is a matter within the discretion of the trial court.
[
Footnote 8]
It has been suggested that a review must be denied because of
the historical limitation of the writ of error to matters within
the record, of which the motion for a new trial was not a part.
[
Footnote 9]
Compare
Judge Learned Hand in
Miller v. Maryland Casualty Co., 40
F.2d 463. But the denial of review can no longer rest upon this
ground, since the record before the appellate court has been
enlarged to include in the bill of exceptions a motion for a new
trial, made either before or after judgment.
Compare Harrison
v. United States, 7 F.2d 259, 262. Under certain
circumstances, the appellate court may inquire into the action of
the trial court on a motion for a new trial. Thus, its denial may
be reviewed if the trial court
Page 287 U. S. 483
erroneously excluded from consideration matters which were
appropriate to a decision on the motion,
Mattox v. United
States, 146 U. S. 140;
Ogden v. United States, 112 F. 523; or if it acted on the
mistaken view that there was no jurisdiction to grant it, or that
there was no authority to grant it on the ground advanced,
Felton v. Spiro, 78 F. 576, 581;
Dwyer v. United
States, 170 F. 160, 165;
Paine v. St. Paul Union
Stockyards Co., 35 F.2d 624, 626-628. It becomes necessary,
therefore, to determine whether the circumstances of the case at
bar justify an enquiry into the trial court's refusal to set aside
the verdict.
Second. It is urged that the motion for a new trial
presented an issue of law. The argument is that, on the motion or
on the court's own initiative the verdict should have been set
aside as inconsistent on its face, since, if the plaintiffs were
entitled to recover at all, they were entitled to substantial, not
merely nominal, damages. The case, it is contended, is comparable
to one in which the award of damages exceeded a statutory limit,
see Southern Ry., Co. v. Bennett, 233 U. S.
80; or was less than an amount undisputed,
Glenwood
Irrig. Co. v. Vallery, 248 F. 483;
Stetson v. Stindt,
279 F. 209; or was in pursuance
Page 287 U. S. 484
of erroneous instructions on the measure of damages,
Chesapeake & O. Ry. Co. v. Gainey, 241 U.
S. 494,
241 U. S. 496,
[
Footnote 10] or was in
clear contravention of the instructions of the trial court,
United Press Assns. v. National Newspapers Assn., 254 F.
284.
Compare American R. Co. v. Santiago, 9 F.2d 753,
757-758.
To regard the verdict as inconsistent on its face is to assume
that the jury found for the plaintiff and failed to perform its
task of assessing damages. The trial judge was not obliged so to
regard the verdict. The defendant had insisted upon several
defenses, and had set up a counterclaim. The plaintiffs were not
entitled to a directed verdict. The evidence was voluminous, and,
on some issues, at least, conflicting. The instructions left the
contested issues of liability to the jury. The verdict may have
represented a finding for the defendant on those issues; [
Footnote 11] the reason for the
award of nominal damages may have been that the jury wished the
costs to be taxed
Page 287 U. S. 485
against the defendant. The defendant did not complain of the
verdict. The record before us does not contain any explanation by
the trial court of the refusal to grant a new trial, or any
interpretation by it of the jury's verdict. [
Footnote 12] In the absence of such expressions
by the trial court in the case at bar, the refusal to grant a new
trial cannot be held erroneous as a matter of law. Appellate courts
should be slow to impute to juries a disregard of their duties, and
to trial courts a want of diligence or perspicacity in appraising
the jury's conduct.
Compare Union Pacific R. Co. v.
Hadley, 146 U. S. 330,
146 U. S. 334;
Dunn v. United States, 284 U. S. 390,
284 U. S.
394.
Third. It is urged that the refusal to set aside the
verdict was an abuse of the trial court's discretion, and hence
reviewable. The court of Appeals has not declared that the trial
judge abused his discretion. Clearly the mere refusal to grant a
new trial where nominal damages were awarded is not an abuse of
discretion. This Court has frequently refrained from disturbing the
trial court's approval of an award of damages which seemed
excessive or inadequate, [
Footnote 13] and the circuit courts of appeals have
generally followed a similar polity. [
Footnote 14] Whether refusal to set aside a verdict for
failure to award substantial damages may ever be reviewed on the
ground that the trial judge abused his discretion we have no
occasion to determine.
Page 287 U. S. 486
Fourth. The respondents contend that the District Court
erred in charging that the measure of damages was the difference
between the contract price and the market price at the time of the
breach, instead of the market prices at the times for delivery, and
that this error may be relied upon here in support of the judgment
of the Court of Appeals.
Compare United States v. American
Railway Express Co., 265 U. S. 425,
265 U. S.
435-436;
Langnes v. Green, 282 U.
S. 531,
282 U. S. 538;
Story Parchment Co. v. Paterson Co., 282 U.
S. 555,
282 U. S. 561.
There was no request for an instruction on this subject, and no
objection was made to that given until after the jury had retired.
The trial judge was under no obligation to recall the jury.
Moreover, the instruction given and the refusal to recall the jury
were not assigned as error on appeal to the Court of Appeals; nor
did that court mention the matter. Under the rules of both the
Court of Appeals and this Court, the exception taken after the jury
retired came too late to furnish a basis for review. [
Footnote 15] We have therefore no
occasion to consider the meaning of the charge given, its
correctness as a matter of law, or the materiality of the error, if
any, in giving it.
The judgment of the Circuit Court of Appeals is reversed, and
that of the District Court is affirmed.
Reversed.
[
Footnote 1]
Rule 10(4) of the Circuit Court of Appeals for the Seventh
Circuit provides: "The court may notice a plain error not
assigned."
See Reliable Incubator & Brooder Co. v.
Stahl, 105 F. 663, 668. A similar rule obtains in this Court,
and in each of the other Circuit Courts of Appeals except the
Eighth. For examples of the application of these rules,
see
United States v. Tennessee & C. R. Co., 176 U.
S. 242,
176 U. S. 256;
Columbia Heights Realty Co. v. Rudolph, 217 U.
S. 547,
217 U. S. 552;
Weems v. United States, 217 U. S. 349,
217 U. S. 358;
Mabler v. Eby, 264 U. S. 32,
264 U. S. 45;
New York Life Ins. Co. v. Rankin, 162 F. 103, 108.
Compare Pierce v. United States, 255 U.
S. 398,
255 U. S.
405-406.
[
Footnote 2]
Contrast
Reliance Coal & Coke Co. v. H. P. Brydon &
Bro., 286 F. 827, 832, where the moving party was the
defendant, against whom the verdict had gone.
[
Footnote 3]
See, e.g., 9 U. S. Moore, 5
Cranch 11,
9 U. S. 12;
Marine Ins. Co. v.
Young, 5 Cranch. 187,
9
U. S. 191;
The Abbotsford, 98 U. S.
440,
98 U. S. 445;
Railway Co. v. Twombly, 100 U. S. 78,
100 U. S. 81. In
numerous cases, no reference is made, in denying review, to the
grounds for the motion.
E.g., 17 U. S.
Gratz, 4 Wheat. 213,
17 U. S. 220;
Brown v. Clarke,
4 How. 4,
45 U. S. 15;
Kerr v. Clampitt, 95 U. S. 188,
95 U. S. 189;
Ayers v. Watson, 137 U. S. 584,
137 U. S. 597;
Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.
S. 128,
142 U. S. 134;
Holder v. United States, 150 U. S. 91,
150 U. S. 92;
Blitz v. United States, 153 U. S. 308,
153 U. S. 312;
Clune v. United States, 159 U. S. 590,
159 U. S. 591;
Addington v. United States, 165 U.
S. 184,
165 U. S. 185;
Pickett v. United States, 216 U.
S. 456,
216 U. S.
461.
[
Footnote 4]
Railroad Co. v. Fraloff, 100 U. S.
24,
100 U. S. 31;
Wabash Ry. Co. v. McDaniels, 107 U.
S. 454,
107 U. S. 456;
Arkansas Valley Land & Cattle Co. v. Mann,
130 U. S. 69,
130 U. S. 75;
Fitzgerald Constr. Co. v. Fitzgerald, 137 U. S.
98,
137 U. S. 113;
Lincoln v. Power, 151 U. S. 436,
151 U. S.
438.
[
Footnote 5]
Chesapeake & Ohio Ry. Co. v. Proffitt, 218 F. 23,
28;
Ford Motor Co. v. Hotel Woodward Co., 271 F. 625, 630;
Alaska Packers' Assn. v. Gover, 278 F. 927, 929;
Boston & Maine R. v. Dutille, 289 F. 320, 324;
Louisiana Oil Refining Corp. v. Reed, 38 F.2d 159, 162;
Geo. E. Keith Co. v. Abrams, 43 F.2d 557, 558;
Southern Railway Co. v. Walters, 47 F.2d 3, 7;
Grand
Trunk W. Ry. Co. v. Heatlie, 48 F.2d 759, 761.
[
Footnote 6]
Act of September 24, 1789, c. 20, 1 Stat. 84, 85;
compare R.S. § 1011, 28 U.S.C. § 879.
See Marine Ins.
Co. v. Young, 5 Cranch. 187,
9 U. S. 190, and
the discussion in 32 Columbia Law Review, pp. 860-869.
[
Footnote 7]
See Metropolitan R. Co. v. Moore, 121 U.
S. 558,
121 U. S. 573;
Williamson v. Osenton, 220 F. 653, 655.
[
Footnote 8]
Zacharie v.
Franklin, 12 Pet. 151,
37 U. S. 163;
United States v.
Hodge, 6 How. 279,
47 U. S. 281;
Warner v.
Norton, 20 How. 448,
61 U. S. 461;
Pomeroy's Lessee v. Bank of
Indiana, 1 Wall. 592,
68 U. S.
597-598;
Freeborn v.
Smith, 2 Wall. 160,
69 U. S. 176;
Sparrow v.
Strong, 3 Wall. 97,
70 U. S. 105;
Ewing v.
Howard, 7 Wall. 499,
74 U. S. 502;
Chicago v.
Greer, 9 Wall. 726,
76 U. S. 735;
Home Insurance Co. v. Wood, 97 U. S.
581,
97 U. S.
583-584;
Pittsburgh, C. & St.L. Ry. Co. v.
Heck, 102 U. S. 120;
Springer v. United States, 102 U.
S. 586,
102 U. S. 595;
Missouri Pac. Ry. Co. v. Chicago & Alton R. Co.,
132 U. S. 191;
Fitzgerald Constr. Co. v. Fitzgerald, 137 U. S.
98,
137 U. S. 113;
Holmgren v. United States, 217 U.
S. 509,
217 U. S.
521.
[
Footnote 9]
At early common law in England, writ of error and motion for a
new trial were mutually exclusive remedies.
See 1
Holdsworth, History of English Law, p. 226. The motion was
addressed to the discretion of the court in banc. 3 Bl.Comm'n 392.
Review by the Exchequer Chamber of the refusal to grant a new trial
was allowed in a limited class of cases by the Common Law Procedure
Act, 1854, 17 & 18 Vict., c. 125, § 35, which provided,
however, that,
"where the application for a new trial is upon Matter of
Discretion only, as on the ground that the Verdict was against the
Weight of Evidence or otherwise, no such Appeal shall be
allowed."
Since the Judicature Acts, which abolished proceedings in error
in civil cases and substituted an appeal (
see Judicature
Act, 1875, 38 & 39 Vict., c. 77, Order 58(1)), appellate
procedure has been regulated by rules of court.
Compare
Supreme Court of Judicature (Consolidation) Act, 1925, 15 & 16
Geo. V, c. 49, § 99(f), as amended by 18 Geo. V, c. 26, § 8. The
present rules provide that applications for new trials are to be
made to the Court of Appeal, which shall have the same powers on
the hearing as it exercises on an appeal.
See Annual
Practice, 1933, Order 39, Rules 1 and 2.
[
Footnote 10]
Compare also James v. Evans, 149 F. 136;
East St.
Louis Cotton Oil Co. v. Skinner Bros. Mfg. Co., 249 F. 439;
Eteenpain Co-op. Soc. v. Lillback, 18 F.2d 912, 915.
[
Footnote 11]
See Olek v. Fern Rock Woolen Mills, 180 F. 117;
Vanek v. Chicago G.W. Ry. Co., 252 F. 871;
Fulmele v.
Forrest, 4 Boyce 155, 86 A. 733. In a number of instances,
state appellate courts have taken this view of the verdict.
Spannuth v. C., C., C. & St.L. Ry. Co., 196 Ind. 379,
148 N.E. 410;
Hubbard v. Mason City, 64 Iowa, 245, 20 N.W.
172;
Wavle v. Wavle, 9 Hun. 125;
Snyder v. Portland
Ry., L. & P. Co., 107 Or. 673, 678-684, 215 P. 887;
Krulikoski v. Sparling, 82 Wash. 474, 144 P. 692 (
but
see Bingaman v. Seattle, 139 Wash. 68, 72-73, 245 P. 411);
see Haven v. Missouri R. Co., 155 Mo. 216, 223, 55 S.W.
1035.
Contra: Miller v. Miller, 81 Kan. 397, 105 P. 544;
Bass Furniture Co. v. Electric Supply Co., 101 Okl. 293,
225 P. 519;
see Johnson v. Franklin, 112 Conn. 228, 152 A.
64.
Compare Pugh v. Bluff City Excursion Co., 177 F. 399,
in which the jury returned a verdict for nominal damages after the
trial court, upon the jury's request to rule on the propriety of
this, gave an instruction couched in generalities.
[
Footnote 12]
Compare Minneapolis, St. P. & S.S.M. Ry. Co. v.
Moquin, 283 U. S. 520, in
which the trial court, expressing the opinion that the verdict was
excessive because of passion and prejudice, nevertheless refused,
on the filing of a remittitur, to grant a new trial.
[
Footnote 13]
See Wilson v. Everett, 139 U.
S. 616,
139 U. S. 621;
Herencia v. Guzman, 219 U. S. 44,
219 U. S. 45;
Southern Ry. Co. v. Bennett, 233 U. S.
80,
233 U. S. 86-87;
St. Louis I.M. & S. Ry. Co. v. Craft, 237 U.
S. 648,
237 U. S. 661;
Louisville & N. R. Co. v. Holloway, 246 U.
S. 525,
246 U. S. 529,
and cases cited in
note 4
supra.
[
Footnote 14]
See cases cited in
note
5 supra. Compare, however, Cobb v. Lepisto, 6
F.2d 128.
[
Footnote 15]
See Rule 9, paragraph 1, of the Rules of the Circuit
Court of Appeals for the Seventh Circuit, and Rule 8, paragraph 1,
of the Rules of this Court.
Also 56 U.
S. Mayer, 15 How. 160,
56 U. S. 161;
Hickory v. United States, 151 U.
S. 303,
151 U. S. 316;
Ford Hydro-Electric Co. v. Neely, 13 F.2d 361.
MR. JUSTICE STONE and MR. JUSTICE CARDOZO (dissenting).
A verdict found in contravention of the instructions of the
court may be reversed on appeal as contrary to law.
So much the prevailing opinion apparently concedes.
Page 287 U. S. 487
The verdict of $1 returned by the jury upon the trial of this
cause may not be squared with their instructions, and hence was
properly annulled.
By the instructions of the trial judge. they were required, if
they found that the defendant had broken its contract, to award to
the plaintiffs the difference between the contract price of the
coal and its market value, after allowance for the defendant's
counterclaim. The evidence most favorable to the defendant, both as
to claim and counterclaim, made it necessary, if there was any
breach, to return a substantial verdict; the minimum being capable
of accurate computation. The distinction is not to be ignored
between this case of a breach of contract and the cases cited in
the prevailing opinion where the liability was in tort. Here, the
minimum, if not the maximum, damages are fixed and definite. There,
the discretion of the jury was not subject to tests so determinate
and exact. The question is not before us whether, even in such
circumstances, there may be revision on appeal.
Cf. Pugh v.
Bluff City Excursion Co., 177 F. 399. Enough for present
purposes that, in the circumstances of the case at hand, the
verdict for $1 is a finding that the contract had been broken, and
this irrespective of the motive that caused the verdict to be
given. What the motive was we cannot know from anything disclosed
to us by the record. Nothing there disclosed lays a basis for a
holding that the nominal verdict for the plaintiffs was designed to
save them from the costs which the law would have charged against
them if there had been a verdict for defendant. The jury were not
instructed as to the liability for costs, and, for all that
appears, had no knowledge on the subject. Nor would such a motive,
if there were reason to ascribe it, rescue them from the reproach
of disobedience and error. It would merely substitute one form of
misconduct for another. It would do this, moreover, in
contradiction of the record. By no process of mere
Page 287 U. S. 488
construction can a verdict that nominal loss has resulted from a
breach be turned into a verdict that there had been no breach at
all. On the face of the record, the jury found there was a wrong,
and then, in contravention of instructions, refused, either through
misunderstanding or through willfulness, to assess the damages
ensuing.
Justice is not promoted in its orderly administration when such
conduct is condoned.